Muhammad Afzal Khan, J.--By judgment dated the 29th March 1968. the Sessions Judge, Multan, convicted Shahbaz (18) under section 302, P. P. C. and sentenced him to transportation for life for the murder of Mst. Hassan Bibi alleged to have been committed by him on the 17th August 1967, at about 11-30 a.m. in the town of Mian Channu, District Multan. The appellant preferred this appeal (No. 383 of 1968) to have his conviction and sentence set aside. The State preferred Criminal Revision No. 613 of 1968 to have the sentence of the appellant enhanced to one of death. This judgment will dispose of the appeal and the revision petition.
2. Ata Muhammad (P. W. 7), complainant, and his wife Mst. Hassan Bibi (deceased) lived in a house in Block No. 4, Ward No. 9, Mian Channu town. In the same lane in a house closeby, there live Haji Khushi Muhammad and his son Muhammad Shahbaz appellant. Muhammad Shahbaz is a student in a college. In the same lane, contiguous to the house of the appellant, are the houses of Fazal Karim (P. W. 9) and Sultan (P. W. 6).
3. The prosecution case, briefly stated, is as follows: About 15 or I6 days before the occurrence, Ata Mahammad complained to the father of the appellant that certain bad characters visited the appellant and that this had an unhealthy social effect on the residents of the lane where women folk also resided. The father assured him that he would advise the appellant not to do so. The appellant,. who was in the house, however, came out in the street and remonstrated with Ata Muhammad, declaring that lie was entitled to do whatever he pleased in his house and that Ata Muhammad had no business to interfere.
On the 17th August 1967, at about 11-00 a.m., Ihsanul Haq (P. W. 6), a nephew of Ata Muhammad, noticed that a certain person, known as Juj, was sitting in the company of the appellant in his Baithak and Ihsanul Haq made a grievance of it to the appellant. In consequence, Shahbaz and Juj on one side and Ihsanul Haq on the other, exchanged fist blows. Ata Muhammad came out of his house and separated them.
After a short while, the appellant came out in the lane and started abusing Ata Muhammad. Ata Muhammad also came out and protested against it. His wife Mst. Hassan Bibi also came out in the lane. She abused the appellant. The appellant rushed into his house and took out a dummy gun (P.
1) (used by Razakars for purposes of parade) and with it gave a blow to Mst. Hassan Bibi on her head. She bled from the injury, fell down on the ground and lost consciousness. The occurrence was witnessed by Sultan (P. W. 8), Abdul Karim (P. W. 9) and Fazal Karim (not produced).
The complainant put Mst. Hassan Bibi on a cot and had her carried to the Civil Hospital, Mian Channu. There it was discovered that Mst. Hassan Bibi had expired.
4. Ata Muhammad went to the Police Station, Mian Channu, at a distance of one furlong and lodged the first information report (Exh. P. A.) at 12*00 noon. It was recorded by S. I. Ghulain Hussain (P. W. 10).
5. S. I. Ghulain Hussain proceeded to the Civil Hospital and prepared the injury statement (Exh. P. H.) and the inquest report (Exb. P. H/1) and sent the dead body to the mortuary for post-mortem examination.
6. Then the Sub-Inspector proceeded to the spot to investigate. The father of the appellant produced the appellant before the Investigating Officer who arrested the appellant forthwith. Then the appellant produced the dummy gun P. 1 (blood-stained) which was duly sealed and taken intd possession vide memo. Exh. P. C. It was attested by Muhammad Rafiq (P. W. 5) and one Ghulain Hussain (not produced). The Investigating Officer got prepared the site plan (Exh. P. L.) by Ghulam Nabi Draftsman (P. W. 4).
The Investigating Officer prepared the injury statement of Ihsanul Haq (Exh. P. J.) and of the appellant (Exh. P. K.) and got them medically examined.
In due course, the dummy gun was sent to the Chemical Examiner and the Serologist who opined that the same was stained with human blood.
7. On the 17th August 1967, at 4-10 p.m., Dr. Bashirud Din, Medical Officer, Mian Channu, performed post-mortem examination on the dead body of Mst. Hassan Bibi and found the following injuries:--
(1) A contused wound on the vertex l|"x x skull deep.
(2) A contused wound on the head, right parietal region 1" x l" x skull deep.
Both the injuries were dangerous to life. In the opinion of the doctor the death was due to shock caused by fracture of skull and compression of the brain by extensive effusion of blood; the injuries in the ordinary course of nature were sufficient to cause death. Probable time between the death and the postmortem examination was five hours.
On cross-examination, the doctor stated that both the injuries could be caused by dummy gun (P.
1) and further that both the injuries could be the result of one blow, "if the dummy is used from the side of butt".
7. The same day at 5-30 p.m. the same doctor examined Ihsanul Haq P. W. and found the following injuries on his person:--
(1) A contusion on the upper lip left side, 2" x 1". There was laceration on its inner side.
(2) A contusion on lower lip left side, 1* x 1*. There was laceration on its inner side.
The injuries were simple, caused with blunt weapon, within l2 hours.
On cross-examination, the doctor stated that the injuries could be the result of fist blows.
(1) AIR 1938 Lah. 216 (3) PLD 1962 Dacca 7
(1) PLD 1950 Lah. 68 (3) PLD 1960 Kar. 160
(5) 1969 P
(1) PLD 1959 Lah. 883
1. AIR 1952 Cal. 627 (2) PLD 1964 SC 94
(3) AIR 1923 Mad. 32
2. PLD 1960 Kar. 797 (2) PLD 1960 Pesh. 74
3. cannot subscribe to this view. None of these articles can be said to connect any of the three appellants with the crime. The three sickles are of ordinary make and are not shown to be connected with the appellants. Gun P. I6 recovered from Allah Bakhsh appellant has not been shown to be connected with the offence, chapar P. 6 which is a part of a *12 bore gun, is said to have been found from the place of occurrence but there is no evidence on the record to show that this chapar fits with gun P. I6 and even if there was such evidence, it would not be conclusive because one chapar could fit with a larger number of'l2 bore guns. Letter P. 8, which was found at the spot is said to have been written by Allah Yar, a brother of the appellants
4. 1970 SCMR 500
5. PLD 1958 Lah. 559
6. AIR 1957 Mys. 5Q
7. PLD 1965 SC 196
8. PLD 1964 Lah. 177
9. 1969 S CM R 521
2. On the 18th August 1967, at 8-00 a.m. the same doctor examined Shahbaz appellant and found the following injuries :--
(1) An abrasion on the right side of the forehead, above right eye-brow, 1 ' x ".
(2) A contusion on the outerside of right arm in the middle 2'x 1".
(3) Two abrasions on the right chest inner end of right clavicle l"x 1/10', and at the base of neck right side 1" x 1/10".
(4) An abrasion on the front of right knee-joint 2"x 1 ' and on the dorsum of right foot 1" x '.
The injuries were simple, caused with blunt weapon, within 24 hours.
On cross-examination, the doctor stated that injury No. 2 could be the result of a Danda blow while the remaining injuries could be caused during a scuffle.
3. At the trial Ihasanul Haq (P. VV. 6) described the occurrence immediately preceding the alleged murder. Ata Muhammad (P. W. 7) duly proved the first information report and gave the details of the motive and of the occurrence in question. Sultan Ahmad (P. W. 8) and Fazal Karim (P. W. 9) corroborated him. S. I. Ghulam Hussain (P. W. 10) gave the details of the investigation.
4. The appellant pleaded not guilty to the charge. He denied that he produced the dummy gun (P.
1). He denied the alleged scuffle with Ihsanul Haq. As regards the main occurrence, he gave the fallowing version in the Court of the committing Magistrate :-- "On the day of occurrence, Hassan Bibi deceased, and her husband Ata Muhammed P. W. abused me and came in front of my house. They had dandas with them, and attacked me, and caused me injuries and, finding my life in danger, I gave a soti blow to Mst. Hassan Bibi, I had no intention to cause injury to her. I am innocent." * In the Court of Session, he explained that he received the injuries at the hands of Ata Muhammad and Mst. Hassan Bibi deceased who attacked him with sticks. He gave his version as below:-- "I was studying in my Baithak. Ihsanul Haq P. W. came in the lane and started making noise. I felt disturbed and stopped him. He did not listen to me and used abusive language. I came out in the lane and slapped him twice. Ihsanul Haq went away to his house and I continued with my studies.
After a short while, Ata Muhammad P. W. and his wife Hassan Bibi armed with sticks came in front of my Baithak and started abusing me. They both came inside my Baithak and dragged me in the lane and gave me a beating with sticks. I had picked up a roller, which was lying on my table and in self-defence gave one blow on the head of Mst. Hassan Bibi. The roller was picked up by me when I was dragged out."
The appellant did not produce any evidence in defence.
10. The learned Sessions Judge believed the prosecution version and disbelieved the defence version. Accordingly, he convicted the appellant under section 302, P. P. C. The learned Sessions Judge believed that the incident was unpremeditated and the appellant had been abused by Mst.
Hassan Bibi. He, therefore, refrained from passing the capital sentence and sentenced the appellant to transportation for life.
11. Ch. Barkat Ali Saleemi, learned counsel for the appellant made the following submissions:--
(a) The material witnesses are deeply interested in the deceased and there was no independent corroboration. The witnesses could not be relied upon for determination of the alleged motive and the details of the occurrence.
(b) The complainant party were the aggressors and the appellant acted in the exercise of the right of private defence. In any case, the prosecution failed to explain the injuries on the person of the appellant.
(c) In the absence of reliable prosecution evidence, the defence version should have been accepted. In any case, this version could as well be true.
12. We have also heard Ch. Nemat Khan, learned counsel appearing for the State.
13. The site plan duly proved is Exh.P.L. There is no dispute regarding the location of the houses of Ata Muhammad the appellant, Fazal Karim and Sultan Ahmad. According to this site plan, which was prepared'* at the pointing out of the witnesses and of the police, the fatal assault took place near the house of the appellant, opposite to the house of Fazal Karim P. W. It is remarkable that the distance between point No. 1 (place of occurrence) and point No. 5 (house of the deceased) is 70 feet and the distance between the point of occurrence and the house of the appellant is 25 feet. *
14. Ihsanul Haq (P. W. 6) is nephew of Ata Muhammad complainant. Ata Muhammad (P. W. 7) is husband of the deceased. Fazal Karim (P. W. 9) is son of Beeka. His brother Abdul Rahim is married to the sister of Ata Muhammad. Mst. Raji is mother of Ata Muhammad. Allah Ditta is grandfather of Sultan Ahmad P. W. lt was suggested that Mst. Raji and Allah Ditta were sister and brother; but Sultan Ahmad denied the same. Ata Muhammad also denied that Sultan Ahmad was related to him, although he admitted that Sultan Ahmad was from his brotherhood, both being Toor Rajputs. lt would thus appear that Sultan Ahmad is not proved to be directly related to Ata Muhammad and the deceased.
Sultan Ahmad and Fazal Karim are neighbours and as such may well be natural witnesses of the occurrence.
15. It was alleged that people of questionable character visited the appellant in the Mohallah and that Ata Muhammad and other residents of the Mohallah objected to it. Ata Muhammad claimed to have lodged a protest with the appellant's father 15 or I6 days before the occurrence. It is further alleged that at the end, the appellant, in the lane, threatened Ata Muhammad with dire consequences.
There is no independent evidence regarding the protest lodged by Ata Muhammad with the appellant's father.
As regards the threat held out by the appellant, Ata Muhammad did not mention in the first information report (Ex. P.A.) that any other person, Fazal Karim and Sultan in particular, witnessed the same. As P. W. 7, Ata Muhammad, stated that after the appellant held out the threat, he went to his house and apprised Sultan Ahmad, Abdul Karim and Fazal Karim, who met him in the lane.
Sultan Ahmed (P. W. 8) stated that at that time he was present in the lane in front of his house. He added:-- "Ata Muhammad told Khushi Muhammad that respectable people lived in the Mohallah and his son Shahbaz often brought bad characters in the Mohallah and they indulged in Goondaism and that Khushi Muhammad should stop his son. Khushi Muhammad assured that he would stop his son. Shahbaz came out of the house and declared that no one could stop him and he would do whatever he liked in his house. Ata Muhammad thereafter left. I went to my house."
Ata Muhammad lodged the protest inside the house of the appellant's father, whereas according to Sultan Ahmad that protest was lodged in the Gali while the appellant was inside the house.
Sultan Ahmad did not state that Ata Muhammad had informed him of the protest--according to him, he himself had observed it. The discrepancy between the statements of the two witnesses is obvious. Fazal Karim (P. W. 9) made a statement similar to the statement made by Sultan Ahmad.
His evidence is open to the same criticism. Thus Ata Muhammad is the solitary witness to establish that he lodged a protest with the appellant's father.
Sultan Ahmad and Fazal Karim stated that they themselves heard the threat held out by the appellant to Ata Muhammad, According to Ata Muhammad, Sultan Ahmad and Fazal Karim were only "apprised" by him. Ata Muhammad, as P. W. 7, made an improvement and stated as below:-- "I went to my house and apprised Sultan Ahmad, Abdul Karim and Fazal Karim who met me in the lane."
In the first information report, he did not mention that Sultan Ahmad, Abdul Karim and Fazal Karim were then present in the lane. It follows that the evidence on this point is hardly reliable.
Sultan Ahmad (P. W. 8) knocked out the basis of Ata Muhammad's allegation. He stated as below:-- "I never complained against the conduct of the accused to his father.............. People of different castes live in the lane where 1 live. Besides Ata Muhammad no one else complained (VOL. V to Khushi Muhammad about the conduct of his son in my presence."
Thus, there is no satisfactory evidence about the motive that Ata Muhammad had a grouse against the appellant for the reason that bad characters visited him.
I6. It is common ground that a short while before the fatal assault on Mst. Hassan Bibi and Ihsanul Haq (P. W. 6) on one side and the appellant (or the appellant and Juj) on the other had a scuffle in which injuries were caused to Ihsanul Haq. There is, however, a dispute whether this scuffle ensued because Ihsanul Haq protested against Juj sitting in the Baithak of the appellant or because the appellant protested that Ihsanul Haq disturbed him in his studies by making a noise in the street.
Ata Muhammad, in the first information report stated that he came out of his house and separated Ihsanul Haq the appellant and Juj. He did not then state that any other person took part in the separation. He, as P. W. 7, made an impovement. He stated that Abdul Karim, Fazal Karim and Sultan Ahmad P. Ws. also reached there and separated Ihsanul Haq and the appellant. He made another significant modification. He stated that the appellant and Ihsanul Haq were grappling with each other and that Juj was "present" there. He added:-- "Abdul Karim, Fazal Karim and Sultan Ahmad P. Ws. also reached there. We separated the two."
It is common ground that Juj was not injured. We, therefore, accept that Juj did not take part in the scuffle which was confined between Ihsanul Haq and the appellant. Ihsanul Haq stated as follows: -- "Thereafter Shahbaz accused caught hold of the collar of my shirt. I caught hold of the collar of his shirt. Shahbaz struck his head with my nose. I retorted in the same manner, and thereafter, we gave blows to each other."
He did not state that Juj took part in the scuffle. Sultan Ahmad and Fazal Karim stuck to the allegation made by Ata Muhammad in the first information report to the effect that Juj also took part in the fight. In view of the statements made by Ihsanul Haq and Ata Muhammad as P. W. 7, we hold that in the scufiie immediately preceding the fatal assault, only Ihsanul Haq and the appellant took part. Sultan Ahmad and Fazal Karim, in their statements before the police and the committing Magistrate, referred to the participation by Juj in the said scuffle. To this extent, we disbelieve them.
Had the dispute between Ihsanul Haq and the appellant been occasioned by the presence of "Juj Badmash" Juj must have felt offended and must have taken part in the scuffle. It is, therefore, legitimate to infer that the scuffle between Ihsanul Haq and the appellant was not relatable to the presence of "Juj Badmash". Besides, there is no evidence to suggest that Juj was a Badmash.
According to the statement made by Ihsanul Haq, he himself and Shahbaz exchanged "head blows" and thereafter gave more blows to each other. The appellant, in the Committing Court denied the scuffle with Ihsanul Haq but in the Court of Session, he stated that he himself gave two slaps to Ihsanul Haq and ascribed all his injuries to Ata Muhammad and his wife in the subsequent occurrence. The medico-legal report relating to Ihsanul Haq shows that he received injuries on the lops, that is to say, did not receive any slaps. This medical evidence falsified the appellant's version. Besides, had Ata Muhammad and his wife come armed with sticks and beaten up the appellant, the appellant would have dealt some blows to Ata Muhammad the principal opponent. We, however, find that Ata Muhammad received no injuries. It is legitimate to infer that whatever injuries have been received by the appellant, had been received at the hands of Ihsanul Haq and that no injuries had been caused to nim by Ata Muhammad or his wife.
17. The finale of the scuffle was that both Ihsanul Haq and the appellant exchanged blows and separated. Ordinarily, this should be taken to be the end of the dispute. The appellant should not, ordinarily, harbour any grudge against Ata Muhammad or should decide to abuse him in the Gali a few minutes thereafter.
18. It is alleged that shortly thereafter the appellant came out iu the lane and started abusing. Ata Muhammad; Ata Muhammad came out of his house and wanted the appellant to stop doing so.
Mst. Hassan Bibi deceased also followed her husband and started abusing the appellant.
Infuriated, the appellant went into his house, brought out the dummy gun (P. 1) and gave a blow with it on the head of Mst. Hassan Bibi deceased. The occurrence was witnessed by Ata Muhammad, Fazal Karim and Sultan Ahmad. On the contrary, the appellant's case is that both Ata Muhammad and Mst. Hassan Bibi, armed with sticks, came to his Baithak, dragged him out and beat him up. We have seen above that the scuffle between Ihsanul Haq and the appellant was a fairly equal fight and neither side had any rancourt left; Ishanul Haq had gone to the hospital for treatment and the appellant, had retired to his own house. We have also seen that in the course of the scuffle between Ihsanul Haq and the appellant, Ata Muhammad acted as a disinterested intervenor not as a supporter of Ihsanul Haq. It is significant that the appellant did not state that Ata Muhammad caused any injury to him. It follows that, ordinarily, at the end of the scuffle, the appellant will not have any cause to abuse Ata Muhammad.
19. We are not impressed by the defence version on this point. If Ata Muhammad had successfully separated Ihsanul Haq and the appellant, Ata Muhammad did not have any justification to again come, armed with a stick, to the Baithak of he appellant drag him out and beat him up. In these circums- anees, it is not reasonable to expect that Mst. Hassan Bibi would :ome, armed with a stick, and cause injuries to the appellant, as illeged by him.
20. We proceed to determine the salient features of the final iccurrence--Viz. assault on Mst.
Hassan Bibi.
Ata Muhammad stated as below:-- "I came out of my house and stopped the accused from abusing us. My wife followed me soon thereafter in the lane. She started abusing Shahbaz; Shahbaz went inside his house. My wife went and stood in front of the house of Abdul Rahim, brother of Fazal Karim P. W. House of said Abdul Rahim is adjacent to the house of the accused, while my wife was still standing outside the house of Abdul Rahim, the accused came out with dummy gun P. 1 and gave a blow on the head of my wife with the butt of the gun."
This means that Mst. Hassan Bibi deceased right from her house came to the house of the appellant and while standing there, abused the appellant.
Sultan Ahmad and Fazal Karim also stated that the appellant caused the fatal blow with the dummy gun (P. 1) on the head of the deceased.
The appellant, in his statement denied that he produced the dummy gun (P. 1) and urged that he had caused this injury with a roller lying on his table. Had this been so, the appellant would have produced that roller. He did not do so. Muhammad Rafiq (P. W. 5) and the Sub-Inspector (P. W. 10) stated that the appellant had voluntarily produced the dummy gun (P. 1). We accept this version.
We also rule out the contention that the appellant caused the fatal injury with a roller, as alleged by him.
It is true that Ata Muhammad is the husband of Mst. Hassan Bibi and that Fazal Karim (P. W. 9) is brother of the husband ol Ata Muhammad's sister. Their statements are corroborated bj Sultan Ahmad who is apparently not directly related to the deceased. Besides, the salient features of the case, outlined by AtE Muhammad, Fazal Karim and Sutlan Ahmad, have been admitted by the appellant. Accordingly, there is little justification tc discard the evidence of the eye-witnesses. They are natura witnesses and their evidence is corroborated, in materia particulars, by the medical evidence, the evidence regarding thi recovery and the admissions made by the appellant.
Accordingly, we believe that, in the context of the case, th deceased stood in front of the house of the appellant and abusei him and it was then that the appellant brought out the dumm gun and gave a fatal blow to her on the head.
As discussed above, Ata Muhammad and Mst. Hassan Bil were not armed and did not give any beating to the appellan The defence version appears to be false. The effort of tl appellant to establish that he had the right of private defence wholly barren. The learned Sessions Judge rightly rejected th; contention and we agree with him.
21. It appears that, for certain reasons, the appellant had scuffle with Ihsanul Haq. Whether the appellant abused A Muhammad and he came out in the lane to stop him or th; Mst. Hassan Bibi also came in the lane and abused the appellan the fact remains that, at the crucial moment, she wa sstanding in tl lane in front of the house of the appellant and was abusing him. It was then that the appellant caught hold of the dummy gun and gave a blow to her. Obviously, this occurrence was without premeditation and sudden. It was the result of provocation caused by the deceased. The appellant caught hold of the dummy gun which is more or less a weapon like a wooden Danda. It is significant that he gave only one blow and did not repeat it. Had he the intention to kill outright, he could have given more blows. He did not act in any cruel or unusual manner although the result was unfortunate, besides, there was no motive to sustain the intention to kill. The appellant shall, however, be presumed to intend the consequences of his act. He shall be presumed to have intended to cause this injury. This injury, according to the Medical Officer, was sufficient to cause death in the ordinary course of nature. Thus the appellant's act, which ordinarily would have amounted to murder (as explained in section 300, thirdly) is covered by Exception No. 4 to that section. His act is punishable under section 304, Part I, P. P. C. Therefore, we alter the conviction under section 302, P. P. C. to one under section 304, Part I, P. P. C. As regards the sentence, we consider that a sentence of 7 years' rigorous imprisonment will meet the ends of justice. We, therefore, reduce the sentence from transportation for life to one of 7 years' rigorous imprisonment.
Subject to this modification, the appeal is dismissed.
22. In view of what has been stated above, Criminal Revision No. 613 of 1968 is dismissed. . Conviction modified.